Appeals Inventory and Forms

On November 23, 2018, Clarissa M. Rodriguez, Chair of the WCB issued Subject 046-1119, http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1119.jsp, touting the Board’s dubious accomplishment in having reduced the appeals inventory to 3,297 applications awaiting a determination and brandishing a statistic that 92% were decided in less than 6 months.

In my opinion, and I believe many practitioners would agree with me, the Board primarily accomplished this feat by implementing drastic and Draconian rules providing it with the fodder to deny the parties’ rights to be heard. Over the past year the Board used this cudgel to deny an entire generation of appeals on the back of due process. It is my understanding that challenges to some of these denials will be adjudicated at the Appellate Division and at least one Commissioner of the Board agrees that when the appeal involves a substantial property right and a minor technical problem, the Board should not elevate form over substance and deny the appeal. We applaud that Commissioner.

As the dust settles the Board has changed the RB-89 and RB-89.1 and instructions, AGAIN, to “aid parties” and “eliminate any possible confusion.” It also issued 15 pages of guidance to provide “additional support” to the all parties in complying with the procedures. Undoubtedly, failure to use the new forms will again lead to the denial of appeals filed by the unwary after 2/1/19 and potentially permit the Board to bully its way to its stated goal of deciding all appeals on average in less than 6 months, for the time being.

However, as the parties adjust and bring their procedures into compliance with the Board’s highly technical and persnickety demands, my colleagues and I see no reason that the same number of appeals which the Board must address will increase again unless the Board made changes and improved its ability to decide appeals. If it has not, presumably another backlog will develop.

Alternatively, the Board could keep changing the rules of the game ad infinitum to continue to avoid addressing the merits of many legitimate challenges and to keep its appeal inventory low. We sincerely hope that this is not the plan.